Mr S D'auvergne and Others V Metroline Travel Ltd
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Case Number: 3327054/2017- 3327058/2017 EMPLOYMENT TRIBUNALS Claimants Respondent MR SEAN D’AUVERGNE v METROLINE TRAVEL LIMITED ME TARIQ KHAN MR KINGSLY CHIME ME KERWYN DYTE MR PETER COWARD Heard at: Watford On: 23 and 24 February 2021 Before: Employment Judge Skehan Appearances For the Claimants: Mr D’Auvergne and Mr Dyte in person For the Respondent: Ms Norris, (solicitor) __________________________________________________ RESERVED JUDGMENT ON REMITTAL __________________________________________________ 1. The claimants claim for unauthorised deductions from wages contrary to section 13 Employment Rights Act 1996 or a breach of contract complaint under Article 4 Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (Mr Coward only, in the alternative) is unsuccessful and dismissed. REASONS Miscellaneous matters 1. This was a remote hearing which had not been objected to by the parties. The form of remote hearing was video. A face to face hearing was not held because it was not practicable and no-one requested the same and all issues could be determined in a remote hearing. The documents that I was referred to are in a bundle of 200 pages, together with the witness statements and the 1 Case Number: 3327054/2017- 3327058/2017 parties legal arguments and submission documents, the contents of which I have noted. The order made is described at the end of these reasons. 2. The parties experienced various technical issues at the commencement of the hearing. Mr D’Auvergne was unable to gain a satisfactory video link to the hearing but managed to join the hearing and participate fully by way of telephone link directly to the CVP platform. Background 3. The claimants are bus drivers, all of whom claimed unauthorised deduction from wages contrary to Section 13 of the Employment Rights Act 1996. Mr Coward also claimed breach of contract in the alternative. Initially, this tribunal found that the claimants’ claims relating to ‘meal relief payments’ when meal relief is taken at Hampstead Heath were successful. The relevant parts of the original Judgment are paragraphs 43-45. The respondent successfully appealed this Judgment to the Employment Appeal Tribunal (EAT) and the matter was remitted back to this tribunal by the EAT decision of Mr Justice Lewis sent to the parties on 18 February 2020. The parties attended a case management hearing on 14 September 2020 where directions were given for an agreed list of issues and written legal submissions. 4. The claimants were originally employed by Arriva and their employment transferred on 26/09/2015 from Arriva to the respondent along with the transfer of the 168 bus route under the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 2006 as amended (‘TUPE’). 5. The respondent set out its position at the outset, that if meal relief payment would have been ‘properly payable’ by Arriva for meal reliefs taken by the claimants at Hampstead Heath prior to the transfer that, the respondent will be liable to the claimants for the meal relief payments taken at Hampstead Heath since the transfer. The main factual questions for the tribunal to decide were revisited at the commencement of the hearing and are: a. What is properly payable by the respondent to the claimants by way of meal relief payment? b. As of 25 September 2015 (the date of the claimants transferred to the respondent under TUPE) what were the eligibility criteria to be met in order for a driver to qualify for meal relief payment at Arriva. c. If the criteria was a ‘recognised relief facility’ what constituted a recognised relief facility. 6. The respondent accepts that Mr Dyte, and other drivers, were properly paid meal relief payment when taking meal relief at Hampstead Heath prior to 2010. The respondent says that at that time eligibility for meal relief payment was dependent on whether meal relief was taken ‘away from garage’. The respondent says that the eligibility criteria applied by Arriva changed in 2011 2 Case Number: 3327054/2017- 3327058/2017 to whether a facility was a ‘recognised relief facility’. The respondent accepts that meal relief payments were properly paid to the drivers when they took their meal relief at Old Kent Road. The respondent says that initially these payments were made because the reliefs were away from a garage and following the policy changes introduced in 2011, Old Kent Road was not a recognised relief facility because it did not have a facility where drivers could take meal relief away from the public. The respondent says that the criteria applied by both Arriva and the respondent as to what constitutes a recognised relief facility at the date of the transfer of the claimant’s employment to the respondent was the same. The Evidence 7. I heard evidence from Mr D’Auvergne and Mr Dyte only on behalf of the claimants. I heard evidence from Mr Harris (Managing Director of Metroline Travel Limited) and Mr Topliss (Quality Assurance Assistant Manager with Arriva London) on behalf of the respondent. All witness evidence was given under affirmation or oath. Witness statements were accepted as evidence in chief and all witnesses were cross-examined. 8. Mr Dyte told the tribunal that: a. When he started employment with Arriva in 2003, he was informed by Unite the union that if he had his meal relief ‘away from the garage’ when working on the 168 route, he would be paid a subsidy or meal relief payment. At this time, he had his meal relief at Hampstead Heath and was paid a meal relief payment. When he took his meal relief at the garage, this meal relief payment was not paid. b. He moved to Ashgrove garage for operational reasons in the September/October 2010. Initially a canteen was not available, and a subsidy was paid. This continued until a subsidised canteen facility was made available in the garage where hot meals were served. After this time, meal relief was only paid when meal relief was taken at Hampstead Heath. c. In 2011, Mr Dyte’s meal relief point changed and was moved from Hampstead Heath to Old Kent Road, Tesco. Meal relief continue to be paid. d. Mr Dyte refers to a payslip dated 2 December 2011 that records ’cash adjustment’ therein. This refers to meal relief payments made for meal relief taken at Hampstead Heath on that date. This payment shows the respondent’s assertion of a change in the entitlement to be false. e. From the beginning of 2012, Mr Dyte took his meal relief at Old Kent Road. During this time Mr Dyte received meal relief payments. Mr Dyte says that the garage had the same setup as Hampstead Heath having a microwave, coffee machine running water and toilet facilities. Mr Dyte says there is no reason to differentiate between 3 Case Number: 3327054/2017- 3327058/2017 the premises and that meal relief payments are owed to the claimant’s in respect to meal relief taken at Hampstead Heath. 9. During the course of cross-examination: a. Mr Dyte was taken through the historic documentation relating to ‘recognised relief facility’. Mr Dyte reiterated that when he started employment with Arriva, he was told that a ‘recognised relief facility’ was a garage that should have a canteen. He was told that there had to be a canteen where a hot meal could be provided. His arguments were based on that fact. b. Mr Dyte says that he did not question what a ‘recognised relief facility’ was with any union member his but based his answer upon what he was told when he started work in 2003. c. No evidence from the union was provided in support of the claim. d. Mr Dyte disputed that the Hampstead Heath facilities were closed to the public. He said that the public could see in the window and knock on the door and it would be rude not to answer them. 10. Mr Harris told the tribunal that: a. The claimants all transferred to the respondent along with the 168 bus route on 26 September 2015 from Arriva London North. Since this time the claimants take meal relief at Hampstead Heath. b. Hampstead Heath is a TfL facility. In common with other TfL facilities it has hot and cold water, a microwave fridge meeting and toilets. Some TfL facilities also have vending machines and storage cupboards. c. He has no reason to doubt the claimants’ previous evidence that for just over a fortnight in 2018 the microwave could not be used but it was then replaced. d. Most of the respondent’s garages do not have canteens. Cricklewood and Holloway, where the claimant have worked since the transfer, are the exception rather than the rule. e. The central factor for recognising the facility is the ability to get away from the public and take meal relief in private. Hampstead Heath meets the criteria. He believes that according to both Arriva, from 2011 and the respondent, Hampstead Heath is a recognised relief facility. Mr Harris refers to the email from Mr Topliss of 5 July 2018 that states, inter-alia: i) They criteria triggering this payment [meal relief allowance of £3.95 per duty] included the fact that there was nowhere for the drivers to go that was away from the public. At a relief points away from the home garage where there is a private rest room with seating, toilet facilities, access to water and/or a microwave oven, except Arriva would not pay any such allowance. f. In preparing for the original hearing, he did not understand the emphasis placed by the claimants on Mr Dyte’s payslips from 2003- 4 Case Number: 3327054/2017- 3327058/2017 2008 or the relevance of the reference to ‘cash adjust’ therein.